TTB Proposes New Regulations Modernizing Alcohol Labeling

On Monday, the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB), the agency that regulates the production and sale of alcohol, published new proposed regulations for the labeling of wine, beer and spirits.  This new proposal is a comprehensive revision of the current regulations. The 132 page publication includes many changes that those of us in the spirits world have been pushing for years.  The list of revisions is too voluminous to recite here, but here are some of the most significant for whiskey and other spirits.   

·         What is a Grain? Under the current regulations, whiskey must be made from grains, but the term “grain” is not defined. The TTB proposes defining grain as including “cereal grains and the seeds of the pseudocereals amaranth, buckwheat and quinoa.” 

·         Oak Barrels. Currently, whiskey must be stored in “oak containers.” The new regulations would instead require “oak barrels” defined as being “approximately 50 gallons,” a standard which would eliminate small barrels that are popular with many craft distillers as well as larger barrels used elsewhere (the limitation would not apply to Scotch and other imported whiskeys which can abide by their own regulations). 

·         Cask Strength/Barrel Proof. These terms are not currently defined. The new regulations specify that those terms are to be used for “distilled spirits stored in wood barrels only when the bottling proof is not more than two degrees lower than the proof of the spirits when the spirits are dumped from the barrels.”  There is a separate definition for ‘‘original proof,’’ ‘‘original barrel proof,’’ ‘‘original cask strength,’’ or ‘‘entry proof’’ which may be used “only if the distilled spirits were stored in wooden barrels and the proof of the spirits entered into the barrel and the proof of the bottled spirits are the same.” Personally, I think the “original barrel proof” and “original cask strength” definitions will confuse consumers and should be eliminated. 

·         Whisk(e)y???   The new regulations clarify that either spelling of whisky/whiskey is permissible. Phew, that’s a relief. 

·         State of Distillation. I’ve long argued that the current regulations require the listing of the state of distillation on a whiskey label, but the regulations are less than clear. The new rules clarify that the state of distillation for American whiskey must be clearly stated on the label. Whiskeys would be required to have a “distilled by” statement or a clear statement in the product description (e.g. Kentucky Bourbon). Query why this only applies to whiskey and not other spirits. 

·         Tennessee Whiskey.  Tennessee Whiskey is not mentioned in the current regs. The proposed regs specifically allow for the use of the term “Tennessee Whiskey” (without defining it) even if the whiskey would qualify as bourbon. This just clarifies current policy that a producer can label their spirit Tennessee Whiskey even if it also qualifies as bourbon. However, it makes it clear that this is an exception, and that other whiskey must include its classification (that is, if it is bourbon, you can’t call it just whiskey on the label).

·         Straighten Up. The new regulations also make clear that if a whiskey qualifies as “straight” it must include that term on the label.  

·         States as Part of Whiskey Type. The new proposal requires that if a state is listed in the designation of the whiskey type on the label (e.g. Kentucky Bourbon or New York Rye), the distillation and any required aging must take place in that state, though it can be bottled or blended elsewhere.

·         No Coloring or Flavoring in Bourbon. The proposed regs formally adopt the current policy that “coloring, flavoring, or blending materials may not be added to products designated as ‘bourbon whisky.’’’   

·         White Whiskey. Creates a definition for “White Whiskey” or “Unaged Whiskey” for whiskey that is unaged or whiskey that is filtered after aging to remove color. The main impact of this will be that craft  distillers won’t have to run their unaged spirit through a barrel for 30 seconds in order to call it “whiskey.”

·         Finishing. There is not a comprehensive treatment of finishing (aging whiskeys in a secondary barrel) under these regulations, but there are a few proposals that touch on them. With regard to age, the proposed regs state, “if spirits are aged in more than one oak barrel (for example, if a whisky is aged 2 years in a new charred oak barrel and then placed into a second new charred oak barrel for an additional 6 months,) only the time spent in the first barrel is counted towards the ‘‘age.’’ With regard to whiskeys finished in non-oak barrels, the proposals would designate those produces a Distilled Spirits Specialty product (which is the current designation) and specifically allow for the “bourbon finished in...” designation that is the current practice (e.g. Bourbon Whiskey finished in maple barrels). 

·         Protected Brandy Designations. Currently the only brandies recognized as a distinct product of their nation of origin are Pisco and Cognac. The new regs would add Armagnac, Calvados and Brandy de Jerez. 

·         Agave Spirits. The new regs create a new category for Agave Spirits which are spirits made of a mash comprised of at least 51 percent agave and that may contain up to 49% sugar. Tequila and Mezcal (which is not referred to in the current regs) would be designated as agave spirits produced in Mexico pursuant to Mexican law. 

·         Absinthe. Absinthe is absent from the current regs. The new regs add a new classification for Absinthe, defining it as being "distilled at less than 95 percent alcohol by volume (190° proof) made with wormwood (Artemisia absinthium), anise, and fennel (with or without other flavoring materials) and possessing the taste, aroma, and characteristics generally attributed to absinthe.” It can include sugar and must be at least 30% abv. It also must be free of Thujone (the toxic compound in wormwood), based on FDA limits, which means less than 10 parts per million. 

When will the new regulations go into effect?  That’s hard to say.  As with all proposed regulations, there is a public comment period. That period closes on March 26, 2019, after which the TTB will need to review those comments and consider changes to the proposal. It can take many months, or even years after the initial publication for regulations to go into effect, so don’t hold your breath, but this is an interesting and admirable attempt to bring the TTB regs into the modern era.  

-Sku